The president's power to engage in war-like actions without a declaration of war by Congress should be seen as analogous to state powers (under Article I, Section 9) to "engage in War" when "actually invaded, or in such imminent Danger as will not admit of delay." The crucial limitation is the requirement of "such imminent Danger as will not admit of delay." Absent such circumstances, only Congress has the power to involve us in a war.
One of the most important attributes of the power to involve us in war is that all members of Congress are directly elected by the people who will have to fight and die in any such conflict. That's a big part of the reason for the 24th and 26th Amendments. The entire House of Representatives must stand for election every 2 years along with 1/3 of the Senate. So the People can deal fairly promptly with members of Congress who are responsible for wars of which the People don't approve.
"Q: So you didn't see any survivors after that first strike? HEGSETH: I did not personally see survivors. The thing was on fire. This is called the fog of war. This is what you in the press don't understand. You sit in your air conditioned offices and plant fake stories in the Washington Post." Kinda reminds me of that scene in A Few Good Men where Jack Nicholson's character yells "You couldn't handle the truth!" as justification for the heinous crime he committed. Hegseth is so obviously in over his head that it would be laughable if it wasn't so serious.
Thank you for this analysis. As you highlighted, George Will is right, Hegseth “seems to be a war criminal. Without a war.” So it is not true that "[w]hen there’s no war" Hegseth and Trump aren’t "committing war crimes when" they 'kill people indiscriminately."
It's important to bear in mind how our Constitution addresses these issues. Article VI emphasized that all legislators are "bound" by their oaths "to support [our] Constitution." In Article I, the People vested in Congress the general power (and imposed the general duty) to "make all Laws" that are "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in" Congress or "the Government of the United States, or in any Department or Officer thereof."
Article I also enumerated powers and duties of Congress that the People deemed necessary and proper. The enumerated powers and duties included "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water" to the extent necessary and proper to support our Constitution. The enumerated powers and duties also included "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations" to the extent necessary and proper to support our Constitution.
Congress need not have declared war before defining conduct as a war crime. "War crimes" are defined in 18 U.S. Code § 2441 (https://www.law.cornell.edu/uscode/text/18/2441). Subsection (b)(2) confirms that the following can be found guilty: any "member of the Armed Forces of the United States" or any other "offender" (e.g., Trump or Hegseth) who "is present in the United States, regardless of the nationality of the victim."
War crimes include the following. An offender is guilty of "Murder" if he "intentionally kills, or conspires or attempts to kill" or even if he kills "unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause." An offender is guilty of "Intentionally causing serious bodily injury" if he "intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war."
It seems to be worth pointing out that referring to two missile strikes of the sort at issue here is an abuse of the expression "double-tap." A double-tap (in shooting a firearm) consists of two shots fired in virtually the same instant as part of a single instance of trying to mitigate a threat. That is not what happened here. A double-tap generally can be justified easily as a legitimate use of force against an active threat. But a second shot after a threat already has been mitigated cannot be justified.
So where are all the guns these terrorist fisherman are supposedly using to traffic drugs into the US? Old Pete should be shitting his pants by now. Trump, too.🤬 Thanks, Lisa. Great post.
The president's power to engage in war-like actions without a declaration of war by Congress should be seen as analogous to state powers (under Article I, Section 9) to "engage in War" when "actually invaded, or in such imminent Danger as will not admit of delay." The crucial limitation is the requirement of "such imminent Danger as will not admit of delay." Absent such circumstances, only Congress has the power to involve us in a war.
We the People delegated almost exclusively to Congress the powers to authorize actions that might involve us in a war. See Article I ("To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water"). For elaboration on the meaning, see, e.g., https://constitution.congress.gov/browse/essay/artI-S8-C11-1-1/ALDE_00013587/%5B'marque'%5D. See also https://constitution.congress.gov/browse/essay/artI-S8-C11-2-5-2/ALDE_00013917/%5B'marque'%5D.
One of the most important attributes of the power to involve us in war is that all members of Congress are directly elected by the people who will have to fight and die in any such conflict. That's a big part of the reason for the 24th and 26th Amendments. The entire House of Representatives must stand for election every 2 years along with 1/3 of the Senate. So the People can deal fairly promptly with members of Congress who are responsible for wars of which the People don't approve.
"Q: So you didn't see any survivors after that first strike? HEGSETH: I did not personally see survivors. The thing was on fire. This is called the fog of war. This is what you in the press don't understand. You sit in your air conditioned offices and plant fake stories in the Washington Post." Kinda reminds me of that scene in A Few Good Men where Jack Nicholson's character yells "You couldn't handle the truth!" as justification for the heinous crime he committed. Hegseth is so obviously in over his head that it would be laughable if it wasn't so serious.
How any foreign leader can sit across the table from these clowns and pretend it’s serious statecraft is beyond me.
What passes for “leadership” in the U.S. is just a circus of money and power; hollow men trading influence like chips at a casino.
The question isn’t whether they’ll break; it’s how long the world will keep pretending they haven’t already.
Thank you for this analysis. As you highlighted, George Will is right, Hegseth “seems to be a war criminal. Without a war.” So it is not true that "[w]hen there’s no war" Hegseth and Trump aren’t "committing war crimes when" they 'kill people indiscriminately."
It's important to bear in mind how our Constitution addresses these issues. Article VI emphasized that all legislators are "bound" by their oaths "to support [our] Constitution." In Article I, the People vested in Congress the general power (and imposed the general duty) to "make all Laws" that are "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in" Congress or "the Government of the United States, or in any Department or Officer thereof."
Article I also enumerated powers and duties of Congress that the People deemed necessary and proper. The enumerated powers and duties included "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water" to the extent necessary and proper to support our Constitution. The enumerated powers and duties also included "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations" to the extent necessary and proper to support our Constitution.
Congress need not have declared war before defining conduct as a war crime. "War crimes" are defined in 18 U.S. Code § 2441 (https://www.law.cornell.edu/uscode/text/18/2441). Subsection (b)(2) confirms that the following can be found guilty: any "member of the Armed Forces of the United States" or any other "offender" (e.g., Trump or Hegseth) who "is present in the United States, regardless of the nationality of the victim."
War crimes include the following. An offender is guilty of "Murder" if he "intentionally kills, or conspires or attempts to kill" or even if he kills "unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause." An offender is guilty of "Intentionally causing serious bodily injury" if he "intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war."
It seems to be worth pointing out that referring to two missile strikes of the sort at issue here is an abuse of the expression "double-tap." A double-tap (in shooting a firearm) consists of two shots fired in virtually the same instant as part of a single instance of trying to mitigate a threat. That is not what happened here. A double-tap generally can be justified easily as a legitimate use of force against an active threat. But a second shot after a threat already has been mitigated cannot be justified.
So where are all the guns these terrorist fisherman are supposedly using to traffic drugs into the US? Old Pete should be shitting his pants by now. Trump, too.🤬 Thanks, Lisa. Great post.